Election officials are scrambling to prepare for this fall’s ballot after a federal appeals court tossed out the state legislature’s districts for the Wake County school board and Board of Commissioners four months before Election Day.
A U.S. Fourth Circuit Court of Appeals panel ordered the federal judge who tried the case to prohibit use of the new maps in the November elections but didn’t tell him what to use instead. With absentee ballots scheduled to go in the mail in two months, elections officials are considering their options and waiting to find out what U.S. Chief District Court Judge James C. Dever III will order them to do.
“We don’t have an order right now,” said Josh Lawson, general counsel for the State Board of Elections, which based on Dever’s order will decide what to do with the Wake election. “It’s under the gun if you want it to be on the November ballot.”
Nine Wake school board seats and five Board of Commissioners races – including two seats created by state lawmakers – were scheduled to be on the Nov. 8 ballot. The Wake County Board of Elections, which is the defendant in the lawsuit because it is charged with implementing the maps, will meet with its attorney Thursday to consider whether to file an appeal.
An appeal would stress an already tight timetable for the election.
“Probably nobody wants to have a timeline more than me, but the bottom line is there’s a process and there is not an answer yet,” said Gary Sims, director of the Wake County Board of Elections.
In 2013, Republican state lawmakers converted two of the nine Wake school board seats to regional districts that each cover roughly half the county. The lines for the remaining seven seats were also redrawn. The changes were set to go into effect this year.
In 2015, GOP lawmakers changed the districts for Wake commissioners to match the school board maps. The changes, which would have been fully implemented in 2018, would have expanded the Board of Commissioners by two seats and eliminated countywide at-large districts.
But last week’s 2-1 court ruling declared the new maps unconstitutional.
Under state law, the State Board of Elections is authorized “to make reasonable interim rules and regulations” when any county elections are declared unconstitutional. Lawson said state election officials hope Dever, who was criticized by the appellate panel for upholding the new districts, will issue an order that gives clear direction on what should be done.
If Dever doesn’t give specifics, election officials will have to do more to fill in the blanks.
“For the community, the decision should be made in a reasonable amount of time,” said school board member Jim Martin. “We need to do everything we can to minimize confusion and maximize school board stability.”
Anita Earls, executive director of the Southern Coalition for Social Justice, which represented plaintiffs in the lawsuit, said election officials should administer the last legally enforceable maps that were in place. For the school board and commissioners, that’s the maps both bodies adopted in 2011 before they were replaced by the maps approved by state legislators.
“The obligation of the Board of Elections is to make as minimal a change as necessary to be able to implement what was in place before,” Earls said.
Dever could consider eliminating the two new super-regional seats for commissioners to comply with the appellate ruling.
The school board contests could be more complicated.
Under the old school board election system, elections were held in odd-numbered years. Legislators wanted to move the elections to even-numbered years, so they extended the four-year terms of school board members who were elected in 2011 to run through this year.
Earls said putting the 2011 school board seats on this fall’s ballot for three-year terms would be a way to restore them to their original election cycle.
But school board Chairman Tom Benton said he’s not sure it would be a good idea to have school board seats on the same ballot as much higher-profile races.
“Do you want board elections on the ballot with presidential and state level elections because it’s hard to generate interest?” Benton said.
The candidate filing period would also need to be reopened if school board elections are held in November using the 2011 lines. The 18 candidates who met last week’s filing deadline did so under the now-prohibited state maps.
If school board elections are not held this year, state lawmakers could use the time to come up with new maps. Legislators said Friday they ran out of time to respond to the court decision before they adjourned for the year.
Sen. Chad Barefoot, who sponsored the bills that changed the Wake maps, has criticized the “unaccountable” federal courts for blocking the new maps and canceling the Wake elections. But Earls places the blame on state legislators.
“While my clients regret the confusion that was caused, they told the General Assembly that these plans are not fair,” Earls said. “So the General Assembly has had plenty of notice.”
The Wake County Board of Elections has two weeks from Friday’s court ruling to request the entire U.S. Fourth Circuit Court of Appeals rehear the lawsuit over the school board and commissioners districts.
If no request is filed, the appellate panel has seven more days to issue an order officially putting its ruling into effect.
Once the ruling is in effect, U.S. Chief District Court Judge James C. Dever III will work on an order prohibiting use of the state legislature’s maps. Dever can issue a detailed order or he can leave the specifics on this fall’s elections to the State Board of Elections.